Dear researchers,
Simple assault under Section 123 of the German Criminal Code (StGB) involves one person causing harm to another’s body or health. The law simply refers to ‘health’ and does not explicitly distinguish between physical and mental health. I am particularly interested in whether it makes a difference under criminal law whether one refers to ‘mental’ or ‘psychological’ health.
My reasoning: In legal practice, a very precise distinction is often made, as terms can have legal consequences. The term ‘harm to health’ typically refers to an impairment of a pathological nature, i.e. something that goes beyond normal discomfort or short-term agitation and is medically classified as ‘pathological’ (for example, a disorder that requires treatment or has a certain duration or intensity).
That is why I wonder: if ‘mental health’ is understood as a normal (healthy) state, and ‘mental state’ more as a pre-existing or vulnerable condition, could the same act not have consequences of varying severity for the victim?
Someone who is already psychologically vulnerable may well be more severely affected by the same event, or even risk a worsening of their condition. Example: Following a minor rear-end collision, Person X, who has no pre-existing condition, experiences only a brief shock and some sleep problems. In contrast, Person Y, who has an existing anxiety disorder, develops an acute stress reaction after the accident (requiring medical treatment, meeting the criteria for a medical condition). As a variation, one could also consider a perpetrator T who deliberately sought to harm X or Y (knowing their mental predispositions).
I cannot quite understand why the legal consequences for an offence against X and Y are the same under Section 123 of the German Criminal Code (StGB). I know from my professor of criminal law that – as he does – one can use the two terms as synonyms.
In short: in the case of certain homicide offences, a distinction is made from the perpetrator’s perspective between different emotional states (‘sthenic’ vs ‘asthenic’). Why, then, is there not a greater distinction made on the victim’s side, particularly with regard to restorative justice (i.e. approaches that emphasise reparation and conflict resolution between perpetrator and victim)?
Warmest regards
Lili Gamba
Dear Lili Gamba
Your question essentially concerns what the protected interest is under Section 123 of the German Criminal Code (StGB) (intentional simple assault). Sandra van der Stroom recently wrote an excellent article on this and other issues relating to offences of bodily harm in the journal recht. I recommend that you read it.
Comprehensive concept of health
The protection of health under Section 123 of the German Criminal Code (StGB) (simple assault) encompasses both physical and mental health. You have observed correctly: Article 123 of the Swiss Criminal Code (StGB) does indeed refer only to ‘health’. However, Article 123 StGB applies only where Article 122 StGB (gross bodily harm) is not applicable. This is because Article 123(1) of the Swiss Criminal Code states: ‘Whoever intentionally causes harm to a person’s body or health in any other way [meaning other than as described in Article 122 of the Swiss Criminal Code]’. It is undisputed that the term ‘health’ in Section 123 of the StGB has the same meaning as in Section 122 of the StGB. Section 122 of the StGB also protects mental health (Section 122(c) of the StGB). Mental health is therefore subsumed within the term ‘health’ in Section 123 of the German Criminal Code (StGB) (van der Stroom, recht 2025, 185, 188).
Health before and after the offence
The concept of mental health is seen as the opposite of physical health (van der Stroom, recht 2025, 185, 188) and is regularly used synonymously with psychological and emotional health. This does not, however, mean that the victim’s pre-existing conditions cannot be relevant when assessing whether harm to health has occurred. This is because, in order to assess whether the perpetrator has caused harm to the victim’s health, the victim’s condition prior to the offence must be compared with their condition after the offence (van der Stroom, recht 2025, 185, 187).
Sentencing takes predisposition into account
This can make a difference, particularly when determining the sentence, or in cases that lie on the borderline between assault (Art. 126 StGB) andsimple assault (Art. 123 StGB) or on the borderline between simple assault (Art. 123 StGB) and grievous bodily harm (Art. 122 StGB). If one victim is more vulnerable than another and therefore suffers (greater) harm to their health as a result of the perpetrator’s conduct, this harm to the health of the more vulnerable victim is attributable to the perpetrator, and they are guilty of bodily harm provided that they caused this injury (causality) and it was also foreseeable. However, if a person suffers from a pre-existing mental illness, it may be difficult to prove causality (Gian Ege, Art. 123 N 1 with further references, in: Graf Damian [ed.], Annotated Commentary on the Swiss Criminal Code, 2nd ed., Basel 2025).
Intent or negligence
The perpetrator’s knowledge and intent play a role in distinguishing whether an act was committed intentionally or negligently. If the perpetrator was not aware of the victim’s particular vulnerability, but it was foreseeable, criminal liability for negligent bodily harm (Art. 125 StGB in conjunction with Art. 12(3) StGB) may apply. If the perpetrator was aware of the victim’s particular vulnerability and intentionally caused the victim harm, criminal liability for intentional bodily harm (Section 122 or 123 of the German Criminal Code (StGB) in conjunction with Section 12(2) StGB) may apply.
Emotional states in cases of homicide relate to the perpetrator’s culpability; they have no bearing on the definition of health within the meaning of Article 123 of the Swiss Criminal Code. Restorative justice affects only the legal consequences and does not affect the concept of health under Article 123 of the Swiss Criminal Code.
Bibliography:
Sandra van der Stroom, “Fundamental Issues in Assault Offences”, in: recht, Journal of Legal Continuing Education and Practice, 2025, pp. 185 et seq.